New lawsuit may provide access to social media

Although the Supreme Court of the United States ruled that States cannot restrict a registered sex offender’s access to social media (Packingham v. North Carolina, 582 U.S. ___ (2017)), nothing has stopped social media companies, such as Facebook or Twitter, from restricting sex offenders from their platforms. A lawsuit filed last week may change that!

Jared Taylor is the founder of the Virginia-based New Century Foundation – a white supremacist organization that was banned from Twitter because of new rules aimed at reducing abusive content. Although we don’t agree with the viewpoints of the Plaintiff, this lawsuit is certainly one in which we hope the Plaintiff prevails.

Taylor is suing California-based Twitter in California Superior Court, alleging that Twitter’s policy of banning him and his organization from their social media platform is unconstitutional and violates Twitter’s own founding principle; to ““[g]ive everyone the power to create and share ideas instantly, without barriers.”

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This should be an interesting case, if it makes it to trial. On one hand you have a private person, Twitter, who has the same rights as any other person. As such, Twitter can exercise its Free Speech and exclude speech as it wishes. However, that comes crashing against what SCOTUS said in Packingham. There are definitely some huge constitutional consequences of this case, regardless the outcome. I just don’t see how a court gets around the statement that social media are the modern public square. The dissent in Packingham didn’t like that broad stroke…this case may highlight why. This case *will* get appealed all the way to SCOTUS…in a few years.

Depending on how this play’s out, FB may get involved later. It is an interesting twist and one that may give our nation some pause to consider the path currently on WRT social media and public square’s.

FYI Twitter does not ban rc’s. In fact, Facebook is the only one who regularly does. I know a court ruling against twitter or youtube would have a global effect on social media, but the article is wrong in saying twitter bans rc’s

Facebook has a blanket ban of a certain class of people, registrants. This twitter case involves banning a certain class of ideas. In my opinion banning whole groups of people, who most likely hold diverse views on many things is far worse than banning a perceived hateful type of speech.

I agree with the corporations banning who they want to ban. It’s their right to conduct business in the best interest of the company and to protect its clients, image, and sponsors.

I hope they lose the case.

What I don’t agree with is the government giving us a label of being dangerous without due process, and instead applying that label to a wide range. They are incorrectly shifting the burden to everyone else, and every company, to either figure out if people on “the list” are truly a threat, and since that is not feasible, people and companies err on the side of caution and just ban us. Same with IML and notifying countries. That shifts the burden, and that burden won’t be accepted.

Why label someone as dangerous, or even potentially dangerous, and try to force everyone else in the world to figure out if you are over and over again, instead of actually determining that one time, as a fair part of a trial?

I agree. Private citizens and companies should have the right to discriminate as they want. If they don’t want to bake me a cake or let me join their socials it should be their right.
The government, on the other hand, as dictated by the Constitution, cannot discriminate, but does, anyway, when doing so suits its interests.

The Constitution does not only apply to the government, nor should it. Corporations and individuals should respect the rights they don’t want anyone infringing upon. It’s one thing to ban particular conduct [dirty pool, discourtesy], but baning groups of people is a horse of a different color.

I agree with you to a degree. To the extent that a business limits public access to only those with a membership or a contract, then I agree that the business may exclude anyone or admit anyone, as they wish. But when the public at large is invited to enter, then any exclusionary policies must be based only on behavior or acts of visitors in violation of Terms of Service that apply equally to everyone. It cannot be based on class or status of the individual being served. This is the idea that is at the heart of public accommodation laws.

The problem for businesses like Facebook is that they have been so successful in promoting their business that they have effectively co-opted both the no-mans land of the commons, and the government-owned town square. The virtual cyberspace they provide for the public to meet, to discuss topics of interest, to organize, and comment on society has far outstripped the utility of the town square. The physical town square is empty, forsaken, frequented only by pigeons, because it is no longer an effective venue for speech, or for reaching people who might be persuaded to one’s point of view. When was the last time you went to the Town Square?

The place where speech can be effective today, where it can reach many people, is in cyberspace. That’s where all the action is. And so, the businesses that provided that space, that carved out that niche, have had their private space turned into a commons, and into the new town square. It is where every public conversation of importance (as well as uncounted conversations of no account) occurs. That is simply the reality that has come to pass. Cyberspace forums such as Facebook are a commons. No private entity can own a commons.

So for this reason, I hope the plaintiffs (whom I personally despise) win their case. It is not who you are, but only your instant actions, that should impinge on your right to occupy and to use the commons or the town square.

And thus we have the significant Constitutional issues that SCOTUS must address–and may drag in CDA Section 230, as well. Where does FB’s 1st Amdt. end and the public square begin? From Packingham, it would seem SCOTUS says FB, has already crossed that bridge. I can foresee SCOTUS saying FB has its own, direct Free Speech rights, but when serving as the conduit for others (i.e. being a public square), it must allow all protected speech.

Though not an exact fit, should Comcast or HughesNet be able to deny Internet service to RCs? Should Google be able to ban IPs of RCs from using its search services? These are all very sticky, difficult questions with answers that will have deep, lasting effects.

I have to think some legal researcher will be able to find a historical (or current) precedent where private property was routinely used as a public forum. Did the colonists gather at a privately owned inn or guesthouse to listen to one another? Did Britons convene in Farmer Brown’s field for stump speeches? IMO, that is what will be needed to show this is nothing new and that FB’s rights are limited when providing the setting–the forum–versus speaking for itself. The extent of its rights will be defined based on its role. Using the above, the innkeeper still had his Free Speech; Farmer Brown still had has Free Speech. But in allowing use of the property, they also allowed unrestrained Free Speech from others. (And like FB, the innkeeper certainly gained financially from doing so.)

I, too, disagree with the Plaintiffs’ speech, but support and will defend all day long their right to hold it and profess it. I hope they win. Either way, I’m positive it’s headed to SCOTUS eventually.

You don’t have to like the message, but the messenger has the right to say it. People can choose to listen to it or not, especially in the new public square.

I hope this gives pause to entities, public and private, who use private companies as their required path to sharing comments, etc on the internet (a public square) into thinking they aren’t required to really share comments, etc and other non-exclusive ways are possible to achieve comment sharing. That might shock a company or two into thinking about their policies.

A private sidewalk built by the Casino was determined to be a public forum for 1st amendment purposes.

I briefly skimmed the document at the above link. It looks like it contains the 9th circuit’s majority opinion and possibly a dissent. What I take to be a dissent starts after the Conclusion section of the majority opinion, but it isn’t marked specifically as a dissent.

Are you referring, in particular, to (c)(2)(A) that absolves from civil liability any provider or user of an interactive computer service who undertakes, in good faith, to “… restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected …”?

It allows providers of internet services to police, as they see fit, their own service, blog, forum, etc.. But it doesn’t require it, nor does it make them liable as a publisher or speaker for any information provided by another information content provider, whether they choose to police content served by their service or not.

I think that is a good thing. It is one of the major reasons why the internet exists at all today.

Where I think this is implicated in the context of an interactive computer service that is declared to be a public forum, a “town square” is that access to and availability of constitutionally protected material may not be restricted.

@CR:
I suspect that is what you had in mind, and if so, I agree.
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Yes, exactly. Thanks for spelling it out better than I would have. What was lubricant to free speech on the Internet in its infancy, is now more like sand in the gears. What was once a method for allowing free expression and exchange of ideas is now filtering out unwanted expressions and ideas. I am quite fine with a hosting entity being absolved of what is spoken, just like I’m fine with a library being held not liable for objectionable books on its shelves, and was fine with Ma Bell not being held liable for what crossed its wires. It’s the gate-keeping by the major online social media that I think may face some scrutiny now that they are the modern town square.

I recall the Venetian case, too. (I also recall how the city/county circumvented it.) Yes, it could be applicable. Thanks for giving me some evening reading. 🙂

I suspect that being a public company rather than a private one may also help to make your case. An extreme example of a private entity useful for a contrast-and-compare thought experiment to flesh out distinctions between social media entities might be one in which a narrow constituency is desired, e.g. a religiously-based media platform without broad appeal beyond that constituency. I haven’t run this experiment through its paces but that might provide some insights. The extraordinarily broad base of FB is probably its Achilles’s heel and the way towards seeing it as a common carrier. If sex offenders, especially if their cases are in the past, are one of the very few not allowed to participate then that may be actionable.

With all that Russian meddling in the election, I don’t see how Facebook or Twitter has a leg to stand on. They allowed fakery to blanket their platforms because they wanted the ad dollars. If they are going to allow fake news to float around their sites, then they have no excuse for banning RSOs, or any other group.

I disagree about Facebook being allowed to ban RC’s, and hopefully you can see where I’m coming from when I explain why. However, I do in general agree with private companies being left alone to discriminate if they want; but not in FB’s case.

One of the commenters highlights the core reason why: Facebook comments are prevalent on a huge number of websites, in particular news and blogs, and a recent study showed that Facebook drops cookies (which means there is either a share button or comments) on a whopping 73% of the top 1 million websites, which includes all major worldwide news outlets, blogs, shopping websites, etc.

Take us back 100 years when the only way to participate in civic life was to go to the local Speaker’s Rock in the public park, or go to the Courthouse, Townhall, or State Capital. Physical presence was necessary: There was no other way.

Now picture them banning RC’s from those places. They’re effectively voiceless, aren’t they.

This is the equivalent, these days, of being banned from Facebook – because it is increasingly the case that “civic life” as we understand it is carried out on those platforms. Ok sure you can access your government buildings directly – and you can never, ever speak to the people whose minds you need to change, The People themselves.

If the effect is the same, can the cause be said to be different? That’s an interesting question. This is the very reason that “separate but equal” was struck down as invalid: The effect was discrimination, even if the law itself did not explicitly create it. If there’s a huge swathe of Americans who are, by private fiat, silenced to the rest of the society… do they really have a voice? It’s not *impossible*, certainly. But harder – much, much harder.

By the same token, I do not think felons should be disenfranchised. Only a felon knows what kind of help felons need.

Really, when viewed in that way, it is in FB’s interest to completely reconceptualize eligibility to conform to standards of access found in the physical public square. Mitigating against that, however, there remains the question of liability which is always going to be at the forefront of FB’s legal minds. As long as they can be sued simply because they didn’t adequately scrutinize their membership for sex offenders with the result that long-in-the-tooth Larry exhorted little Alex to provide nude photos of himself, then there will be a problem which finds its source in the promiscuous impulse to litigate every little insult in life.

But doesn’t Section 230 protect them? (I’m truly asking.) There seem to have been few victories against companies holding up Section 230 as their defense, and they’ve tended to be due to deceptive and/or discriminatory behavior by the site. (https://www.eff.org/issues/cda230/legal)

Also, I would think they could *benefit* from being defined as a public square, as they then are no more liable than the innkeeper when long-in-the-tooth Larry cops a feel on little Alex.

CDA Section 230 gives them shelter from such suits. While they might face public outcry and backlash (albeit hard to imagine in sufficient strength to materially affect them) FB is not responsible for information posted on their service by content providers (e.g., the public). They are under no obligation to police information posted by others on their service, and they are protected from liability should they do so.

Excellent citation. I didn’t realize that this survived the striking-down of the “decency” portion of the law. Given this, I agree that it appears to provide a bulwark of protection but maybe not enough to keep the cry babies from filing suit and annoying Team FaceBook, in the first place. There seem to be a few carve-outs, as is typical and maybe enough to leave legal scholars and lawyers-on-the-dime pondering their significance. Also, due to the excellent immunity that the Backpage decision provides, Congress is trying to inject culpability back onto providers with “Stop Enabling Sex Traffickers Act (SESTA).” This seems to be aimed squarely at holding, in this case, FB responsible for “Long-In-The-Tooth Larry” or his trafficking equivalent. Who knows if SESTA will have legs or embark on the long “siesta.”

Facebook requires the infrastructure of the internet to even exist. The internet is so large and diverse that it is a public space. Because it is a public space the first amendment applies. Facebook can try to build its own infrastructure, but while it still operates off the public grid it is bound to keep the integrity of the first amendment. If it were a little service, its terms would have little impact on the general health of free speech, but because it is so large, it functions as a virtual manager of free speech on the internet and it should update its terms to reflect that role.

The problem with that is that the Internet backbone is not a governmental construct but a thoroughly private one. It does engage with government on a lot of levels to built-out its infrastructure, e.g. construction permits, right-of-ways, security, and it does operate under governmental regulations related to access, but there are bright-line distinctions between the Internet “pipes,” if you will and the content that flows through them.

Government offices use facebook, Twitter, etc. to communicate with the public. This makes facebook a vendor subject to the same rules applied to any government entity or contractor.
The line between what flows through the wires and air and the wires and air themselves is kind of an odd argument and I don’t understand it. One would not exist without the other. It’s very interconnectedness would not exist without some government or government like structure providing standards and rules of operation. Otherwise it would be like the first railroads, each line having its own track gauge and passengers and freight having to transfer trains where one line ends and the other begins, because trains could not run on another company’s tracks. Facebook’s very success is a result of that coordination by the public. By public I mean the general term for any resource that is managed in common for the common good.

Tim, most standards are established by industry and standards-setting bodies which the government may then bless and codify. They don’t actually set most of the standards for the Internet. If government uses FB as a non-paying customer, then they are precisely like we are and there is no basis for forcing them to submit to customer regulation. Sure, there are some regulations governing them as businesses but that’s true for almost all businesses. That is not the same as forcing FB to surrender control of the company to the government. And try to imagine how terrible the Internet would be if the government regulated it.

I see an awfully large difference between the network and the people using the network or the creators for the network. It’s the difference between, say, a telephone network and people who use telephones.

I am not talking about the government taking over facebook. What I am talking about is keeping them from denying free speech rights to whole class of people. It is facebook saying they want to be THE public square, not a private club. The government is recognizing them as a public square, a means to communicate the actions of government to the masses. Facebook benefits from the traffic and targeted advertizing. It is a contract, because, although I don’t know how that works, some representative of government must sign up to use facebook and that person agrees to the terms. Sounds like a contract to me.
Anyway, what makes a protected class anyway? It comes from an arbitrary discrimination not based on some rational metric, combined with large numbers of discriminated against individuals. Noone is going to make us a protected class soon, but for what it is worth there is little reason why we aren’t.

@Tim Moore, “It is facebook saying they want to be THE public square, not a private club.”

Is this a fact? Can you point me to a some statement by FB that explicitly states this? It could be important in a law suit against FB’s policy of excluding some people (e.g., RCs).

The following is from VENETIAN CASINO RESORT v. American Civil Liberties Union, at the 9th Circuit:

=========================
Property that is dedicated to public use is no longer truly private. Although the owner of the property retains title, by dedicating the property to public use, the owner has given over to the State or to the public generally “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” the right to exclude others. Dolan v. City of Tigard, 512 U.S. 374, 393, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994) (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979))
=========================

The internet is like a public highway… hmmm… So FB is like a Target, home depot, or Costco (which membership is required). Yet, none of them will discriminate your business. For FB, although the ads are the directive and such, without people to drive the clicks or activity, then FB wouldn’t be as big.

So wouldn’t this be a discrimination suit? Registrants aren’t the only ones who have been convicted of a crime. So that angle is cut down and would still be a discrimination suit.

Do the registrants need to find a different internet to communicate with? or is this another form of banishment due to a “regulatory scheme”?

Except that there is no policy in place that Registrants are not to be discriminated against. Indeed, it is the fervent hope of most in government that we WILL be discriminated against. That’s what the Registry is for, after all; to encourage discrimination. As for those innocent individuals in our lives who are adversely affected, too, well, most would say that they should simply get out of our lives if they had any sense. By remaining in our lives then they can expect to suffer the attendant costs that come from associating with us. That’s really how they think. So, until we attain the status of a protected class of people (don’t hold your breath), then an action against FB (who are, after all, exercising their discretion in the operating policies of their company) is not the sort of lawsuit that will get to first base. There is no underlying legal doctrine enshrining our rights.

The only reason facebook can discriminates against RC’s is because of the belief that we are all going to be on there to look for child victims. They couldn’t do that with any other group as a blanket ban. I don’t see a ban on convicted terrorists or convicted scammers. They couldn’t get away with that. They have to use actual conversations as evidence to ban individuals other than registrants.

@CR:
First, a correction to my statement above about recalling the case you cited: I was thinking it was the case involving the people who hand out escort flyers. What you have provided is something else…and having read it, it does indeed seem to have some strong arguments against FB or its ilk from being able to claim private forum status. The case itself was so so, but the case law they cited was awesome! I particularly like this snippet:
*****
Although the owner of the property retains title, by dedicating the property to public use, the owner has given over to the State or to the public generally “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” the right to exclude others.
*****
This would seem to apply to social media, FB in particular. They have dedicated their property (FB website) to public use: political leaders of all stripes, at every level of government, in every branch of government are using it. Cities, counties and states use it. Charities use it. Schools use it. I believe by their ubiquity, they have ceded their right to exclude others.

I also like this citation:
*****
In Citizens to End Animal Suffering, the district court enjoined the owners of Faneuil Hall Marketplace, a private corporation, from interfering with the plaintiffs’ freedom of expression, because the Hall was performing a public function.
*****
How is this any different than what FB does?
=====
I have long been strident in my position that FB cannot be compelled to allow RCs on its site. This case shifts my position.

Thanks, CR, for this excellent find! I don’t know that I’ll be suing FB anytime soon (I’ve never been fond of social media), but I’ll keep it in my “law library.” 🙂

P.S. Yes, that Yale paper on Romer v. Evans is pretty good reading. I wondered, too, how J. Kennedy could be so wise in that case, yet be off the rails in Smith. He seems to have found his path again, but boy are we still suffering for it!

Yes, FB is no different from these cases. They have forfeited their right to exclude anyone by dedicating their property to public use. And not only that, but they have structured such use so as to profit from it. It was no accident that public use was encouraged. It was their intent.

I hope someone, armed with this knowledge, will challenge their exclusion of RCs. That won’t be me. I’m no fan of FB, and have no interest in associating with it. But I do believe they can no longer legitimately exclude RCs that want to join them from participation.

Twitter doesn’t ban sex offenders. Only Facebook and Instagram ban sex offenders. Kind of dumb if you ask me, given that (as someone else mentioned “Russian Meddling” above) Facebook had no problem screwing up the 2016 elections. Yet when it comes to RSO’s, who are actual CITIZENS who have paid with with some form of incarceration or supervision, Facebook manages to put the interests of treasonists and foreign agents over actual citizens. As far as I’m concerned, Facebook is just a waste of time. Some of us ought to see the ban as a blessing in disguise.

A lawsuit in Manhattan Federal Court against Pres. Trump and his blocking of people on Twitter may be the canary in the coal mine regarding social media being public fora. If Twitter is declared a public forum, there will be little stopping any and every other platform routinely and systematically used by public officials being declared a public forum (are you listening, FB?).

@AlexO:
Such marking could be argued as compelled speech. It could also readily–and probably with greater chance of success–be argued to impose a chilling effect on one’s speech, without any compelling government interest. Given the extremely First-Amendment-centric SCOTUS we have right now, it would be a tough stance for “them.”

Dave C. up above says Twitter doesn’t ban RCs. The value in ruling that Twitter is a public forum is that an argument could be made that other social media platforms that perform a similar function for government voices, and that do ban RCs, are also public forums. And if that were to come to pass, then those platforms could (presumably) also not ban anyone from exercising their 1st amendment rights on their public forum platform. For FB that might mean that they could not ban an RC from some level of participation in their “forum” simply because he is an RC.

But I think that outcome is a huge stretch. I don’t see it happening. At most, I think a ruling in this case would find that Trump’s Twitter account is a public forum, and that he cannot ban anyone from it. I doubt any ruling will affect Twitter in general, or any other social media platform.

But I’m neither a lawyer nor a constitutional scholar, so you never know. Let’s just hope for a favorable outcome.

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